IMPORTANT POINTS
(1) Agreement to Sell – Only a valid and enforceable contract can be ordered to be specifically performed.
(2) Agreement to Sell – Court is not bound to order specific performance even if it is lawful to do so.

JUDGMENT

By way of the present Second Appeal, the original Plaintiff is before this Court challenging the common judgment dated 24 th April, 2015 passed in Regular Civil Appeal Nos.394 of 2000 filed by the original defendant No.1 to 3 and Regular Civil Appeal No.292 of 2002 filed by the original Defendant No.4. The 1st Appellate Court has allowed the Appeals resulting in dismissal of the Special Civil Suit No.46 of 1989 seeking specific performance of agreement for sale deed 23rd December, 1988.

2. As both the Second Appeals arise out of common judgment dated 24th April, 2015, with consent of the parties the Appeals were heard together and are being disposed of by this common judgment. For sake of convenience, the parties are referred to by their status before the Trial Court.

Factual Matrix:

Plaint:

3. Special Civil Suit No.46 of 1989 was instituted seeking specific performance of the agreement for sale dated 23 rd December, 1988 and for direction to Defendant Nos.1 to 3 to hand over possession in event of finding that Plaintiff is not in possession of the suit property. The suit property was described in the plaint as 15 Anna 3 Ps. share admeasuring 1 H 47 Are out of Gat No.151 total admeasuring 1 H 55 Are of village Valse, Tal. Satara. The case of the plaintiff was that the defendant no.1 executed an agreement for sale dated 23 rd December, 1988 with the consent and in presence of the defendant nos.2 and 3 for total consideration of Rs.70,000/- and also handed over possession of the property to the plaintiffs. Part consideration of Rs.50,000/- was paid to the defendant no.1 in the presence of the Sub Registrar. The alienation of the suit property was by defendant no.1 in his capacity as “Karta” of the joint family property and for the purpose of buying a new Tractor and for digging of Well. The permission of the Resettlement Officer was necessary for execution of the sale-deed which obligation was accepted by defendant no.1 and it was decided that after permission is obtained within period of six months, the balance of sum of €20,000/- would be paid and the sale-deed would be executed. Public notice was issued in respect of the transaction on 18th January, 1989 to which the Defendant No.1 and Defendant Nos.2 and 3 responded stating that the defendant no.1 has already executed an agreement for sale dated 18th November, 1987 in favour of the defendant no.4 for a total consideration of Rs.1,40,000/- and that the possession of the suit land is with the defendant no.1. The plaintiff is ready and willing to pay balance amount of Rs.20,000/- as per the agreement for sale dated 23rd December, 1988, however, as the defendant nos.1 to 3 have refused to perform their obligations, the present suit has been filed.

Written Statement:

4. The common contention of the defendants in their respective written statements is denial of execution of agreement for sale by Defendant No.1 in favour of Plaintiff. The suit land is an ancestral joint Hindu family property of the defendant nos.1 to 3 and the son of the defendant No.2 as well as the sister of the defendant no.1. The defendant No.1 had executed an agreement for sale of the entire suit land in favour of the defendant no.4 on 18th November, 1987 for total consideration of Rs.1,40,000/- with consent of defendant nos.2 to 3 and their sister - Ratnabai. Rs.20,000/- has been received from defendant no.4 as earnest money.

5. The plaintiff after becoming aware of the transaction between the defendant nos.1 and 4 approached the defendant no.1 misrepresenting that he has been deputed by Defendant No.4 for accompanying Defendant No.1 to Collector’s office for filing necessary application for permission as the suit property was tenanted property. Accordingly, the defendant no.1 accompanied the plaintiff to the Collector’s office where the Defendant No.1’s signature was obtained on document purporting to be an application seeking Collector’s permission. Rs.50,000/ was handed over to the Defendant No.1